REASONS FOR DECISION

DE SA J.:

Overview

[1] The Appellant appeals against both his conviction and the finding of guilt on the “over 80” and seeks a new trial.The Appellant argues: (1) That the Crown’s cross-examination of PC Welten went well beyond the scope of the s. 10(b) Charter voir dire, resulting in an unfair trial and a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code; and (2) That the trial judge erred in failing to find a violation of s. 10(b) of the Charter.

[2] I have reviewed the trial record and I have considered the Appellant’s arguments as advanced on the appeal. Having considered the issues, I do not agree that the Crown’s examination of PC Welten rendered the Appellant’s trial unfair or resulted in a miscarriage of justice. Nor am I of the view that the trial judge erred in finding that there was no violation of s. 10(b). In my view, that finding was open to the trial judge on the record before him.

[3] The appeal is dismissed.

[4] The reasons for my decision are outlined below.

Summary of Facts

Evidence at Trial

[5] On the evening of November 28, 2015, Jessy Maheu (Maheu) was at a McDonald’s in Barrie near the Walmart plaza, Chapters and Starbucks. He observed a motor vehicle in the drive-thru and its driver, intoxicated, incoherent and swaying. Maheu assisted the driver (the Appellant) out of the driver’s seat and moved the car into the parking lot to await police.

[6] Holland McKenzie (McKenzie) was with Maheu at the time and also observed the Appellant. McKenzie described the Appellant as “slouched down in the seat, head sort of nodded back or tilted – tilted right back and mouth open”.

[7] When he asked the Appellant if he had been drinking, McKenzie described the Appellant as “just like kind of not saying words, just kind of like uhhh…” Further he said, “just as I was tapping on his chest I asked like, were you drinking tonight? And he couldn’t say words.”

[8] McKenzie called 911 for assistance as Maheu moved the Appellant’s vehicle into a parking spot at the McDonald’s.

[9] At 3:31 a.m. PC Welten and PC Watson were sent by dispatch to investigate a possible impaired driver. When the officers arrived on scene, they spoke with Maheu and McKenzie. Maheu and McKenzie identified the vehicle and informed the officers about their observations of the Appellant.

[10] PC Welten and PC Watson approached the motor vehicle and found it unlocked. The Appellant was located in the passenger seat and appeared to be sleeping. They tried to wake him up by calling out to him and grabbing his shoulder, tapping him and shaking him. He did not immediately wake up. The officers detected a very strong odour of alcohol but did not observe any open sources of alcohol.

[11] When he opened his eyes, they observed the Appellant’s eyes to be “very glossy”. When asked for his name the Appellant mumbled “I don’t know”.

[12] The Appellant was unable to verbally identify himself and was asked to provide identification. He pulled out his black touch screen cell phone and began looking at the reverse side of the screen. His speech was slurred. He was asked if he had a driver’s license, he replied “I don’t know what you mean”.

[13] PC Welten arrested the Appellant for impaired driving, and he was taken to the station. After speaking with duty counsel, the Appellant provided two suitable samples of his breath for analysis directly into the approved instrument.

The 10(b) Voir Dire

[14] At trial (January 2017), the Appellant filed ss. 8, 9 and 10(b) applications. The parties agreed that most of the Charter issues could be resolved by way of a blended trial and Charter voir dire. However, the Crown required that the s. 10(b) application be dealt with first.

[15] The s. 10(b) Charter voir dire began with the Appellant calling the arresting officer but limiting the examination-in-chief to solely the s. 10(b) issue. The Crown then cross-examined on the s. 10(b) issue, but also elicited evidence relating to other issues at trial including PC Welten’s evidence pertaining to the grounds for her arrest of the Appellant.

[16] In her evidence, PC Welten testified that upon the Appellant’s arrest, she provided him with the rights to counsel. After providing the rights to counsel, the Appellant responded by mentioning the name Bromell, (referring to Craig Bromell, the Toronto Police Association President). The Appellant told PC Welten that Bromell was wealthy. PC Welten did not understand the relevance of the Appellant’s remarks. When the Appellant was told he could speak with a lawyer or duty counsel, he agreed to speak to duty counsel.

[17] After being taken to the station, the Appellant was paraded before the booking sergeant. As he was paraded, the following exchange took place:

SERGEANT: Okay. Evan, I have to tell you this whole area is recorded by audio and visual for my protection as well as yours. So you’re wishing to speak with duty counsel, is that correct?

APPELLANT: Yeah.

SERGEANT: Okay. So what happens here is the officer will place a 1-800 phone call, leave a message, duty counsel calls.

APPELLANT: No. I don’t want duty counsel.

SERGEANT: Who do you want us to call?

APPELLANT: I want you to call my father.

SERGEANT: Is your father a lawyer?

APPELLANT: No. But he’ll call, he’ll call one.

SERGEANT: Your rights are to speak with a lawyer. You can speak with a lawyer of your choice or you can speak with duty counsel. If you want us to notify your father we may consider doing that but your rights are to speak with a lawyer. Okay?

WELTEN: Duty Counsel.

APPELLANT: I would much rather you call my father.

SERGEANT: Okay. And who might your father be?

APPELLANT: My father would be Doug Skrepnek and he’s going to call Craig Bromell.

SERGEANT: Okay. And what’s Mr. Bromell going to do for you? Mr. Bromell’s not a lawyer.

WELTEN: We’ve been through this, had this discussion.

APPELLANT: I understand that.

SERGEANT: There’s nothing Craig can do for you.

APPELLANT: He’s going to contact the lawyer for the Toronto police union and that police union’s lawyer’s going to…

SERGEANT: Evan, if you’d like to speak to duty counsel or a lawyer of your choice, please inform me and we will do that. You’re not going to try and play the heavy… I know Craig Bromell quite well. Stop dropping names. All right?

APPELLANT: Okay.

SERGEANT: Do you want to speak with duty counsel or do you want to speak with a lawyer?

APPELLANT: Please call my father. That’s all, that’s all I want you to do.

SERGEANT: Excellent.

APPELLANT: I would like you to call my father. He’s going to say to me that I’m a fuck up and I’ve done some terrible things. Honestly, I don’t want you to call duty counsel or a lawyer. I just want to make one phone call. Do I have a right to a phone call?

SERGEANT: You have a right to speak with a lawyer. Thus, the phone call. You’re confusing real life with television. Your rights are to speak to a lawyer, duty counsel or a lawyer of your own choice. If you said my regular lawyer is Peter or Colin Smith then we would place that phone call for you. Okay. Your father is not a lawyer. Is that correct?

APPELLANT: I want to call a lawyer.

SERGEANT: Who do you want us to call?

APPELLANT: Duty counsel. [Emphasis added.]

[18] At the voir dire, the Appellant testified that his requests to speak to his father were intended to facilitate contact with counsel. Crown counsel, in cross-examination, questioned the Appellant as to whether he had issues with the advice he received from duty counsel. He testified that while the discussion with duty counsel was “adequate”, he would have rather spoken to a lawyer of his choice arranged by his father.

[19] At the end of the voir dire, all parties agreed to have the evidence of PC Welten apply to the trial proper. The Crown also called PC Welten again on the trial proper in examination-in-chief after the voir dire was complete. PC Welten was then made available to the defence for cross-examination on the trial proper and the remaining Charter issues.

[20] On December 1, 2017, the trial judge dismissed the s. 10(b) application finding that he was not satisfied that the Applicant had met his onus.

Change of Counsel and Objection to Procedural Irregularity

[21] At the beginning of the second trial date (November 2018), the Appellant retained different counsel. Counsel took issue with the fact that Crown counsel elicited evidence during the course of the initial voir dire from Officer Welten through cross-examination. Counsel opposed the admission of the evidence and asked that the Crown be required to recall Officer Welten for examination-in-chief on the s. 8 and trial proper.

[22] The trial judge refused to require the Crown to recall the witness based on the agreement of prior counsel, however, the trial judge permitted the Appellant’s new counsel to cross-examine the officer on the trial proper and on the issue of the reasonable grounds for the arrest and demand.

[23] After hearing the evidence and submissions, the trial judge dismissed the s. 8 Charter application. The trial judge was satisfied that PC Welten had “ample grounds” to believe the information received from the complainants, and her own observations were sufficient to arrest the Appellant and make the demand.

[24] The trial judge was also satisfied that the samples were taken as soon as practicable, within the two-hour time limit and that the Crown could rely upon the presumption.

[25] He was also satisfied beyond a reasonable doubt that the Crown made out the case of care and control while ability to operate a motor vehicle was impaired by the consumption of alcohol.

Issues Raised by the Appellant

[26] The Appellant submits that the Crown’s examination of Officer Welten rendered his trial unfair. The Crown elicited evidence on the voir dire and trial proper through cross-examination of its own witness. The Crown was not required to recall the witness and was permitted to rely on evidence elicited on cross-examination.

[27] The Appellant also argues that the trial judge erred in failing to find a violation of s. 10(b) of the Charter. In this case, the Appellant submits that the booking sergeant’s decision to not permit the Appellant to speak with his father with a view to facilitating contact with counsel of choice violated his s. 10(b) rights.

Analysis

1) Was there a Miscarriage of Justice under s. 686(1)(a)(iii)?

[28] In R. v. Pannu, 2015 ONCA 677, 328 C.C.C. (3d) 149, Watt J.A. provided a succinct statement of the standard to be applied in determining whether there has been a miscarriage of justice at paras. 90 and 91:

A court invited to set aside a conviction on the basis that it constitutes a miscarriage of justice engages in a fact-specific analysis of the circumstances underpinning the claim. The court considers the gravity of any irregularities that occurred at trial and their impact on the actual and apparent fairness of that trial. A miscarriage of justice may be established where a procedural irregularity or other trial incident created an appearance of unfairness: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 73.

An appearance of a miscarriage of justice requiring a new trial exists where the irregularity is such that it taints the administration of justice in the eyes of a reasonable observer: R. v. Spiers, 2012 ONCA 798, 293 C.C.C. (3d) 17, at para. 32. In other words, would a well-informed reasonable person, considering all the circumstances, perceive the trial as appearing to be unfair: Khan, at para. 73. The irregularity must be sufficiently significant or pronounced to amount to a miscarriage of justice: R. v. M. (L.W.), 2008 SKCA 168, 239 C.C.C. (3d) 326, at para. 68. [Emphasis added.]

[29] To invoke s. 686(1)(a)(iii), an appellant is not required to establish that s/he was wrongly convicted or that the conviction is unreasonable. The emphasis is not on the final verdict and the overall strength of the evidence against the accused, but rather on the gravity of the irregularity and the effect it may have had on the fairness of the trial. R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639, at para. 93.

[30] A miscarriage of justice cannot be cured by operation of the curative proviso. Again, it deals with the fairness of the process, not whether or not the result would have been different.

[31] In this case, the Appellant submits that the Crown’s examination of Officer Welten rendered his trial unfair. The Crown elicited evidence on the voir dire and trial proper through cross-examination of its own witness.

[32] The Appellant submits that the unfairness was compounded by the Crown’s broad examination of Officer Welten that went well beyond the scope of the s. 10(b) voir dire and included evidence relevant to the ss. 8 and 9 issues and the trial proper. According to the Appellant, the evidence elicited by the Crown through cross-examination was material to various contentious issues on both the Charter application and the trial.

[33] I agree with the Appellant that the position taken by the Crown was not ideal. If the Crown intended to elicit evidence relating to the trial proper and the other Charter issues, she should have called the witness in chief. Similarly, given that the defence obviously wanted to cross-examine the arresting officer on the voir dire, the Crown should have made the witness available for cross-examination. Context will usually dictate who should call the witness. Blended trials clearly assist with efficiency but depend on cooperation between counsel.

[34] That said, while the approach taken was not ideal, I do not find this irregularity impacted the fairness of the trial, or the appearance of fairness when considered in its proper context. The evidentiary record makes clear that the witness was pressed by the defence on contentious points when required on the s. 10(b) application. The Crown’s examination of the police witness (PC Welten) was open-ended on contentious issues throughout. The defence was also afforded a full opportunity to cross-examine PC Welten on the trial and the ss. 8 and 9 voir dire.

[35] Moreover, with respect to the issues to be decided, PC Welten’s evidence did not stand alone. Two civilian witnesses and another police witness were called on behalf of the Crown and each were cross-examined extensively by the Appellant’s counsel on similar issues.

[36] No doubt, the fact that other evidence was available on these issues is not dispositive. To invoke s. 686(1)(a)(iii), an appellant is not required to establish that s/he was wrongly convicted or that the conviction is unreasonable. However, it does impact the significance of the irregularity in the context of the trial as a whole.

[37] In my view, there was no miscarriage of justice here.

2) Were the Appellant’s 10(b) rights violated?

[38] The right to retain and instruct counsel under s. 10(b) entitles an individual that is detained to contact counsel without delay. Once a detainee indicates a desire to speak to counsel s/he must be provided a reasonable opportunity to do so, and the police must refrain from eliciting evidence until the detainee has had that opportunity.

[39] Providing detainees with a “reasonable opportunity” to contact counsel also includes providing access to third parties who can assist the detainee in contacting counsel: R. v. Ellies , [2015] O.J. No. 4231 (C.J.)at para. 24; R. v. McFadden , 2016 ONCJ 777, [2016] O.J. No. 6932 (C.J.),at para. 126; R. v. Dempsey , [1997] O.J. No. 196 (O.G.D.)at paras. 110-111; R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.), at paras. 23-25; R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] S.C.J. No. 59 (S.C.C.).

[40] The defence argues that the booking video demonstrates the Appellant made two clear requests to contact counsel of choice through his father. In finding that the Appellant wanted to contact his father solely for emotional support, the Appellant argues that the trial judge ignored the significance of the two unequivocal but unsuccessful requests to speak to his father to contact counsel.

[41] The Appellant also submits that the trial judge’s references in his reasons to the adequacy of the advice received were misplaced. The right to counsel of choice is a stand-alone constitutional entitlement, a violation of which cannot be remedied by “adequate” advice from a different, unchosen lawyer.

[42] In this case, the trial judge’s reasons for dismissing the s. 10(b) application are clear. He rejected the Appellant’s evidence and found that the Appellant’s requests to speak with his father were not directed at retaining counsel. Simply stated, the trial judge did not accept the Appellant’s evidence on the s. 10(b) application. He explained:

There are at least three competing narratives as to why Mr. Skrepnek may have wished to call his father or Craig Bromell while under arrest for this offence.

One is that he may have been trying to gain some influence with the police by dropping what he thought might be an influential name during the course of his interaction with police upon arrest…

A second way to view this evidence is that Mr. Skrepnek wanted to speak to his father or Mr. Bromell for the purpose of obtaining the name and contact information of a lawyer.

The third, and in my view by far most likely understanding of what was going on in respect of Mr. Skrepnek’s desire to speak to his father or Mr. Bromell, is that he was a confused and scared young man in a difficult situation who wanted to speak to his father for comfort and reassurance, and to be able to tell his father that he had tried to call a family friend who might have influence as his father instructed him. This point is most clearly evident in Mr. Skrepnek’s own words at the police station:

MR. SKREPNEK: Please call my father. That’s all, that’s all I want you to do.

SERGEANT: Excellent.

MR. SKREPNEK: I would like one phone call to my father. He’s going to say to me that I am a fuck up and have done some terrible things. Honestly, I don’t want you to call duty counsel or a lawyer. I just want to make one call. Do I have the right to make a phone call?

At the end of the day I am not satisfied on the balance of probabilities that Mr. Skrepnek, in requesting to speak to his father or Craig Bromell, had the intention of obtaining information to speak to counsel of choice. Instead, the evidence is clear to me that he wished to speak to hi father because that was his father and when the choice was clearly put to him he opted for speaking to duty counsel which he did and whose advice he testified he was satisfied with. Accordingly, I’m not satisfied that the applicant has established a breach of his rights under s. 10 of the Charter and, accordingly, the application is dismissed. [Emphasis added.]

[43] From the outset, the Appellant was asking to speak with Bromell with a view to intimidating the arresting officer and thereafter the booking sergeant. At the station, the Appellant initially stated he wanted to speak with duty counsel. Thereafter, he started mentioning his father, primarily in the context of his references to Bromell. Finally, the Appellant stated:

[44] It is hardly clear that the Appellant wanted to speak with his father with a view to arranging counsel. In my view, the trial judge was entitled to make the findings that he did. His assessment of the evidence and findings of fact are entitled to deference.

[45] I also disagree that the trial judge’s reference to the adequacy of the advice received from duty counsel reflects a misunderstanding about s. 10(b) as a standalone right. When considered in context, the trial judge was simply explaining certain aspects of his credibility assessment of the Appellant’s evidence. Though the selected remarks may be unfortunate, I do not agree that they reflect a misunderstanding on the part of the trial judge.

Disposition

[46] The appeal against the conviction and finding of guilt are dismissed.

[47] The Appellant also appeals his sentence on the basis that the $450 victim fine surcharge imposed by the trial judge must be vacated because the relevant statutory provision has since been found to be unconstitutional by the Supreme Court in R. v. Boudreault, 2018 SCC 58, [2018] S.C.J. No. 58 (S.C.C.).

[48] In light of the Supreme Court’s decision in Boudreault, the victim fine surcharge is set aside.

Justice C.F. de Sa

Released: April 1, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

EVAN SKREPNEK

Appellant

REASONS FOR DECISION

Justice C.F. de Sa

Released: April 1, 2021

R. v. Skrepnek, 2021 ONSC 2456

Case Summary

REASONS FOR DECISION

Overview

Summary of Facts

Evidence at Trial

The 10(b) Voir Dire

Change of Counsel and Objection to Procedural Irregularity

Issues Raised by the Appellant

Analysis

1) Was there a Miscarriage of Justice under s. 686(1)(a)(iii)?

2) Were the Appellant’s 10(b) rights violated?

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 1